Notes for April 24

Main points

Where is the law to be found? Hobbes tried to establish the following hierarchy:

  1. Civil law, the explicit commands of the sovereign.
  2. Natural law, reason or “equity”.
  3. Common law, past judicial decisions or legal scholarship.

We mainly discussed the relationship between the first two: civil law and natural law. That was because one of our members is working on a paper on natural law. Hobbes himself was more interested in the common law in this chapter.

The definition of law

The crucial parts of Hobbes’s definition of civil law are in the second and third paragraphs of chapter 26. These are:

  1. Laws are commands
  2. They are given only to those who are “formerly obliged to obey” the commander.

I thought there was an interesting twist in the fifth paragraph. The commonwealth is the source of laws. But since it can’t act on its own, the ability to make laws falls on the natural person who represents the commonwealth, namely, the sovereign.

The mutual containment of natural and civil law

We spent most of our time talking about Hobbes’s confusing claim that “the law of nature, and the civil law, contain each other and are of equal extent” (26.8).

This starts off with an assertion that the laws of nature are not “properly” laws prior to the commonwealth but only “actually” become laws when they are incorporated into the civil law. The strong suggestion is that the laws of nature are only laws when backed by the punishments of the commonwealth that make them obligatory.

Then, Hobbes says that the civil laws are contained in the laws of nature because they are based on a covenant: the social contract. Covenants are binding by virtue of the third law of nature, so the obligation to obey the law is derived from the third law of nature.

Here are some questions about this.

  1. Later, Hobbes says that the laws of nature are “undoubtedly God’s law” (26.41, see also 31.3). How does that square with his claim that the laws of nature are not really laws until the sovereign incorporates them into the civil law of the commonwealth?
  2. How are civil laws based on the third law of nature if the third law of nature isn’t a genuine law prior to the commonwealth? Similarly, how can sovereigns be bound by the laws of nature if they aren’t genuine laws (see 21.7, for example)?

I pulled out a number of definitions from the OED in an attempt to find an interpretation of what Hobbes meant by saying that the laws of nature are the “dictates” of nature and not “actually” laws. The goal was to find definitions of these words that would enable us to reconcile the different things Hobbes wrote.

I think we made it part of the way there. For instance, I think he could plausibly be taken to say that the laws of nature are not “actually” laws in the sense that they are not enforced and systematically interpreted outside the commonwealth. They may be laws in fact (definition 1) but not practically (definition 2).

But Charley pressed me on the fact that this sort of qualification is not present in Hobbes’s definition of a law. That only refers to commands and prior obligations. It doesn’t say anything about a “practical” sense in which something may not “actually” be a law.

So I still have a long way to go before claiming to have solved this one. In fact, I suspect that it can’t be solved: Hobbes said too many different things about the laws of nature to hope to reconcile them all. But who knows what might turn up if you keep plugging away at it?

Common Law

We did not have much time to discuss this topic: it got squeezed out in the last revision of the syllabus, alas, because the law wasn’t anyone’s paper topic. But it was important to Hobbes, so here’s a brief rundown.

Hobbes was concerned to dispute the idea that the common law is a source of law. The common law in a society consists in the customs and past legal practices of that society. As its foremost expositor, Sir Edward Coke, put it, what the law is has to be decided by “the artificial reason” of those who have engaged in the “long study and experience” needed to “attain to the cognisance of it.” In particular, Coke maintained, the King did not have this kind of background and so could not have a more authoritative interpretation of the law than the lawyers did. See Roland G. Usher. 1903. “James I and Sir Edward Coke.” English Historical Review 18 (72) (October): 664–675. (JSTOR)

This obviously did not fit with Hobbes’s view that the law comes from the commands of the sovereign.

One interesting moment comes when Hobbes tries to argue for the superiority of natural law over the common law. This comes out in his description of the “presumption of law” surrounding flight (26.24).

Suppose a man is accused of a capital crime, flees, but is nonetheless found innocent (e.g. the truly guilty person is subsequently discovered). There was a common law “presumption of law” that required courts to take flight as logically entailing guilt, regardless of the other evidence of innocence. Hobbes thought this was absurd. The way he expressed that opinion was to say that it is contrary to the law of nature, specifically equity. So there is no need for the sovereign to specifically issue a command removing this presumption of law; the fact that it is so contrary to reason and equity is supposed to be reason enough to conclude that the common law doctrine is not actually a law.

However, it’s worth bearing in mind that this is not quite as good for the accused individual as it appears. If the sovereign did issue a command establishing a penalty for flight, the person who flies would be liable to punishment. So Hobbes’s point was more about the hierarchy of laws than it was about the individual rights of the innocent person.

This page was written by Michael Green for Hobbes Seminar, Philosophy 185s, Spring 2013. It was posted May 4, 2013.
Hobbes Seminar